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Court of AppealPartially AllowedCivil Appeal 350 of 2012· [2014] KECA 874 (KLR)

New Vision Kenya (NVK Mageuzi) & 3 others v Independent Electoral & Boundaries Commission & 4 others; The Kenya National Commission on Human Rights (Interested Party)

Court of Appeal
6 June 2014
RNRN NambuyeDMDK MusingaKMK M'Inoti
6,452 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that Kenyans abroad can vote, but only progressively — dual citizens qualify, and the IEBC must keep expanding Diaspora registration.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the ruling of Majanja J. in High Court Petition No. 331 of 2012, which dismissed a constitutional petition by four Diaspora-based Kenyans seeking declarations and orders compelling the IEBC and State organs to facilitate voter registration and voting for Kenyans abroad in the 4th March 2013 general election. The appellants argued five of sixteen grounds, contending principally that the trial Judge erred in treating the right to vote as not absolute and subject to progressive realization and logistical constraints. The Court framed three issues: the nature and extent of the Diaspora right to vote, the IEBC's responsibility to facilitate it, and whether the reliefs should have been granted. It affirmed that the right to vote under Article 38(3) is a fundamental political right available to every adult citizen, including Diaspora citizens, but is not absolute and is subject to reasonable and justifiable limitations under Articles 19(3)(c) and 24(1). It held that Article 82(1)(e) contemplates progressive realization of the Diaspora vote through legislation, and that Parliament had complied by enacting the IEBC Act, the Elections Act and the Elections (Registration of Voters) Regulations 2012. The Court found the time before the 2013 election too short for full Diaspora roll-out, but, being forward-looking, issued four directions: dual citizens are eligible to register as voters; the IEBC should progressively set up more Diaspora registration centres; the respondents should provide progressive voter registration for all elective positions; and they should jointly and severally put in place cost-effective registration infrastructure. The appeal partially succeeded and the appellants were awarded half costs in both courts.

Key legal issues

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01

Nature and extent of the right to vote for citizens residing outside Kenya

Holding

The right to vote is a fundamental political right available to every adult citizen including those in the Diaspora, but it is not absolute and may be reasonably and justifiably restricted; it is to be realized progressively.

Reasoning

The Court construed Articles 19(3)(c), 20, 21, 24, 38(3), 81, 82 and 83, holding that Article 38(3) guarantees the right without unreasonable restriction, while Article 82(1)(e) expressly contemplates progressive registration of citizens residing outside Kenya and progressive realization of their right to vote. International instruments introduced via Article 2(5) and (6) confirm the right is not absolute.

02

Responsibility of the IEBC in facilitating the Diaspora vote

Holding

The IEBC is the State organ mandated to facilitate the right, and Parliament had complied with its constitutional obligation by enacting the IEBC Act, the Elections Act and the Elections (Registration of Voters) Regulations 2012, which provide a framework for progressive realization.

Reasoning

The Court noted that Regulations 34-39 of the Elections (Registration of Voters) Regulations 2012 tie Diaspora registration and voting to the presence of Kenyan embassies, High Commissions or consulates, and confine external voting to presidential elections and referenda. The State bears the burden under Article 20(5)(a) of showing it lacks resources to ensure enjoyment of the right.

p. 9
03

Whether the trial Judge erred in failing to grant the reliefs sought

Holding

The dismissal of the petition could not be faulted as regards the 2013 election, but the Court was entitled to give forward-looking directions on future preparedness, which the trial Judge should have considered.

Reasoning

The election date had passed and the time available to the IEBC was too short for meaningful arrangements. However, because other declarations were sought beyond facilitation for the 2013 election, the Court found it feasible and appropriate to issue directions to the respondents on progressive voter registration and infrastructure for future elections.

p. 10

Legal principles established

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  • The right to vote under Article 38(3) is a fundamental right but is not absolute; it is subject to reasonable and justifiable restrictions under Articles 19(3)(c) and 24(1).
  • The right to vote of Kenyan citizens residing outside Kenya is to be realized progressively through legislation enacted by Parliament and implemented by the IEBC.
  • Diaspora citizens who are dual citizens are eligible to be registered as voters, as the right to vote is to be enjoyed without distinction.
  • On a first appeal the Court is obliged to re-appraise the evidence and draw its own inferences of fact.

Court orders

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  1. 1.Declaration that Kenyan citizens in the Diaspora who are dual citizens are eligible to be registered as voters
  2. 2.Direction that the first respondent should progressively set up more registration centers in the Diaspora
  3. 3.Order directing the respondents to adequately provide for progressive voter registration for Kenyans living in the Diaspora for all elective positions
  4. 4.Order that the respondents jointly and severally put in place infrastructure to allow for the maximum number of Kenyans possible in the Diaspora to register as voters to facilitate participation in forthcoming general elections on a cost effective basis
  5. 5.Half costs of the appeal and of the High Court granted to the appellants

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2(4), 2(5), 2(6), 19(3)(c), 20(3), 20(4), 20(5), 21(1), 21(2), 22(1), 23(1), 24(1), 25, 38(3), 81, 82(1)(e), 83, 88(1), 88(5), 89(1), 97(1)(a), 259(1), 259(3), 261(1)
  • Independent Electoral and Boundaries Commission ActNo. 9 of 2011, Section 4, Section 25
  • Elections ActNo. 24 of 2011, Section 5(1), Section 109
  • Elections (Registration of Voters) Regulations 2012Regulations 34-39
  • Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution (Practice and Procedure) Rules 2012Rules 3 & 17
  • Court of Appeal RulesRule 29(1)
  • International Covenant on Civil and Political Rights (ICCPR)Article 25
  • International Convention on the Protection of the Right of all Migrant Workers and Members of their FamiliesArticle 41
  • African Charter on Human and Peoples RightsArticle 13
  • African Charter on Democracy, Election and GovernanceArticle 12

Cases cited (2)

  • Sumaria and another vs Allied Industries Limited
    [2007] 2 KLR 1

    On a first appeal the Court is obligated to reconsider the evidence, re-evaluate it and make its own conclusion.

  • Mujere vs Mwechelesi & Another
    [2007] 2 KLR 159

    An appellate court should be slow to interfere with trial judge's findings unless unsupported by evidence or a misunderstanding of the evidence.

On appeal from
High Court of Kenya at Nairobi
H.C. Petition No. 331 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under its Rules (Rule 29(1) of the Court of Appeal Rules) from the High Court's constitutional petition decision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "New Vision Kenya (NVK Mageuzi) & 3 others v Independent Electoral & Boundaries Commission & 4 others; The Kenya National Commission on Human Rights (Interested Party)", Case Analysis (2014). Civil Appeal 350 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/874/eng@2014-06-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.